Complainant

Respondent

Anonymised Parties

Clerical Officer

Government Department

Representatives

Cliodhna McNamara of Civil Public & Services Union, Orla Carroll

Michelle Curtis, Eoin Deasy

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00009771-001

17/02/2017

The Complainant is employed as a Temporary Clerical Officer since 28th May 2012. She is paid €597.77 per week. She has claimed a contract of indefinite duration (CID).

The Complainant has relied upon the purpose of the This Act which is to improve the quality of fixed term work and to establish a framework to prevent abuse arising from the use of successive fixed term contracts. She relied upon Sec 7 and * in support of her claim. She stated that having completed more than g-[ four years continuous fixed term employment on one contract her employer has contravened Sec 9(2) of this Act by operation of Sec 9(3) her fixed term contract was transmuted into one of indefinite duration by operation of law.

Her contract commenced on 28th May 2012 with a purpose cited but no specific end date. Her contract stated its “for the purpose of general clerical officer duties to begin the roll out of the Public Service Card on a Nationwide basis”. She has not received any contracts or letters of extension from her employer post 28th May 2012. She is comparable to all permanent employees performing clerical officer duties. The objective grounds for less favourable treatment is based solely on her status as a fixed term worker. She is entitled to a contract of indefinite duration by operation of law. The Respondent’s actions in dealing with the Complainant are not justifiable on objective grounds. Sec 8 of this Act states that objective grounds for not issuing a contract of indefinite duration may be arriving at a specific date, completing a specific task the occurrence of a specific event. Permanent and Temporary Clerical Officers perform the same duties across the Service. It is widely accepted that fixed term workers should be recruited for the purpose of meeting a temporary and/or transient need only but this is not what’s occurring in the Complainant’s case. The task that the Complainant has been assigned to has an on-going requirement following the issuing of all the cards it is then a requirement to maintain the system and there is no specific end date on her contract. In correspondence from the Respondent dated 27th April 2012referred to the process being bedded in. It is their position that the process has long been bedded in and she is still in employment. She performed a range of duties unconnected with the service cards at the commencement of the employment. The work being undertaken by the Complainant has become part and parcel of everyday life in the Department and therefore no longer meets a transient need.   The work in on-going, the objective grounds cited by the Respondent no longer exists. The Complainant is being treated less favourably to permanent staff regarding holiday entitlement, right to transfer. She has cited case law in support of her position; Inoue v NBK Designs [2003] 14 ELR 98, C-212-04 Adenelr and Others v Ellikinos Organismos Galaktos [2006] IRLR 716, Etc. It is her belief that there will always be a need for fixed term staff however where an individual has been employed in excess of 4 years the Respondent must provide and clearly communicate very specific reasons as to why the contract should not be converted to a contract of indefinite duration and this did not occur in this case. She is entitled to a contract of indefinite duration by operation of law.

A contract of indefinite duration is not appropriate as the complainant does not have two or more successive fixed term contracts which are required in order to have an entitlement to a CID under this Act. There are two phases to the Department’s roll out of the service cards, the initial rollout and then the normal maintenance of the system. The purpose of her contract was to facilitate the first part of the project the initial rollout. This is the objective reason of her employment and is stated in the contract of employment. The objective reason for her contract continues and so she is not entitled to a contract of indefinite duration. When the objective reason for this temporary contract ceases, she will be given appropriate notice and her contract will terminate. She will be entitled to statutory redundancy as she has in excess of two years’ service.

I note the Complainant received one contract of employment on 28th May 2012.

I note that the Complainant has met the requirement of 4 year’s continuous service in order to have an entitlement to a CID.

I find that this can be saved if the Respondent has legitimate objective grounds which justify the fixed purpose contract which are appropriate and necessary as per Sec 7(1) of this Act.

I note that the contract stated “The appointment will commence on 28th May 2012 and will be for the purpose of “general clerical officer duties in X House to begin the roll-out of the PS cards”. This appointment therefore cannot result in a contract of indefinite duration.

This contract refers to “to begin the roll-out” not to complete the initial roll-out as is now being asserted by the Respondent.

The roll-out began shortly after she began her employment but she has continued in that employment and there has been no communication issued since.

I find that this fixed purpose contract as distinct from a fixed term contract cited its purpose as” to begin the rollout”.

Therefore, its purpose ceased upon the beginning of the roll-out which was in 2012, or at the latest later that year.

Therefore, her contract should have ceased upon the beginning of the roll-out. In practice, I accept that this was not what was intended but that is what was stated as the purpose in that contract.

I find that the contract was silent on the event that would determine the contract.

I note that the Complainant has continued to work in that area despite the fact that technically the purpose of the contract has been achieved.

I find no reason why this contract having been in existence for 5 years should not continue indefinitely.

I find that the Complainant has acquired a contract of indefinite duration by operation of law.

Contract of Indefinite Duration